Lord Boateng: My Lords, this Bill is ill judged, ill drafted and ill timed. It offends on all three of those points. It is ill judged because it is brought forward purportedly with a narrow political purpose, and one that might be felt to be in some quarters unexceptional. However, it goes far beyond that, because it will have a widespread and chilling effect on decision-making around ethical investment, environmental considerations and human rights. It will have a disastrous consequence globally in all three of those areas, while purporting to deal with one particular narrow mischief that it seeks to address.
As has been pointed out already in our deliberations, it is ill drafted because of its extremely loose terminology —unprecedentedly loose in its references to moral and political considerations. It is open to the widest of interpretations and gives exceptional powers to Secretaries of State, which will put them at odds with national parliaments and assemblies and with local government. It will create constitutional confusion and conflict.
It is ill timed because it is being introduced into our Parliament at a particular moment in history when there is widespread concern about human rights violations in sovereign states, which are causing much wider concerns, about the actions of some sovereign states in invading the territories of others and about conflicts, with international and domestic impacts, around the illegal occupation of areas of sovereign states in our world. Frankly, nothing could be more designed to impact adversely on community cohesion than this Bill or to yet further undermine the reputation of this country as an upholder of international law. It therefore offends on all three points.
I have to say that I have been an activist in relation to boycotts. I was a member of a local authority which in December 1983 passed a resolution against apartheid and in support of Nelson Mandela and other political prisoners in South Africa. Had this law been in place at the time, it would have put us in immediate conflict with the law and been illegal: there is no doubt about that. Yet we as a local authority in London at that time represented the voice of Londoners on apartheid. They felt that apartheid was morally and politically wrong—all things that are apparently illegitimate in this piece of legislation. Well, Londoners were right and government was wrong. Surely on all sides of the House we can agree that sometimes that happens.
What really matters in the world is not what Governments say or do but what people say, do and think. People matter more than Governments. If the Minister is concerned about sowing confusion internationally, I tell her as someone who is proud to have had the job of representing Crown and country abroad that the saving grace of Britain’s reputation in South Africa was not its Governments, of any political persuasion—I sought to represent Her Majesty’s Government at a time of considerable concern in South Africa and globally about Iraq—but its people. Trade unions, churches and the Mothers’ Union in Brighton led a boycott in relation to South African origins in that city which is remembered to this day in East Brighton in South Africa. So, whatever the reputation of the British Government, the British people are respected because of their steadfast belief in human rights and their activism and willingness to do something about it. It is that activism and willingness that are attacked by this Bill.
I draw to the attention of the House the proper concerns of the Society of Friends—the Quakers—about this Bill in its helpful briefing to us:
“We know from experience that grassroots action can be an effective, peaceful way to bring about lasting positive change. In severely limiting the ethical decisions that public bodies can make, we are concerned that the Bill restricts Quakers and other people of faith from putting their faith into action by campaigning on matters of conscience, particularly at the local authority level where opportunities for citizens to influence democratic decisions are greater”.
The Society of Friends is right. The Government have to answer them, and all people of faith and conscience concerned about human rights abuses, apartheid and a range of issues, and tell them why it is wrong for them to support local action and public authorities standing up for the environment, human rights and the values that our country surely represents.
The Bill limits and chills action in all those areas. The exceptions are too narrowly defined, in that they fail to cover human rights. The Bill exceeds its stated purpose in the Conservative Party’s manifesto. It provides the Secretary of State with exceptional and unnecessary additional powers; it places unnecessary and cumbersome restrictions on public authorities; it limits the ability of local authority pension funds to perform their stewardship responsibilities; and it offends in every way against the very best that this nation represents. For that reason, we need to scrutinise it in a way that ensures that it does not leave this place as it is now. If it does, it will destroy the reputation that this country has built up over many years. We must not allow this Government to do that—not in their zombie year.

Lord Verdirame: My Lords, I am broadly supportive of this Bill, but I have a number of concerns.
First, I share the concern expressed by other noble Lords that Clause 4 as currently drafted might have a disproportionate impact on freedom of expression, and in particular on political and academic speech. I understand the reassurances found in the Explanatory Notes—we heard to that effect from the Minister earlier —but it seems to me that principles as important as those need to be protected in the Bill rather than in the Explanatory Notes. I look forward to ways of improving the clarity of the terms of Clause 4, in particular.
Secondly, I am concerned about the impact of the Bill on universities. I declare an interest, in that I am a professor at King’s College London. I echo the concerns that the noble Lord, Lord Willetts, expressed on universities. At the heart of the Bill is a new duty to
“not have regard to a territorial consideration”
in a manner that would indicate
“political or moral disapproval of foreign state conduct”.
As Universities UK noted in its written evidence, universities, in their relationships with overseas higher education institutions, as well as with foreign businesses and states, are already subject to a number of duties, particularly with regard to national security, that require them to take into account foreign state conduct. We have to be sure that the new duty in the Bill does not create confusion around these other duties which are intended to protect universities and our country from the influence of unfriendly foreign actors, not least actors such as Iran, which are keen to set foot in our universities, radicalise students and propagate anti-Semitism.
My third concern mirrors the point raised by my noble and learned friend Lord Etherton and goes to paragraph 6 of the Schedule. There was some discussion in the other place about the legal opinion on the legislation by Mr Hermer KC, which was mentioned earlier by the noble Lord, Lord Hain. In that opinion, he identified the problem with paragraph 6 as clearly as anyone until, of course, my noble and learned friend spoke. He wrote:
“The fact that the United Kingdom is in breach of its obligations under an unincorporated international treaty (e.g. the UN Charter) does not normally create a foundation for a claim in domestic law before the UK Courts. Here though the Bill provides a ‘domestic foothold’ through paragraph 6 of the Schedule”.
He observes, rightly, that domestic courts are normally reluctant to review the conduct of foreign states, but the Bill would oblige them to tackle the issues because they will have to do so to determine the legality of the impugned decision. I agree with his conclusion that, paradoxically, paragraph 6
“will very materially increase the prospects of a domestic court pronouncing on the legality of various aspects of the occupation”.
He is, of course, referring to the Occupied Palestinian Territories in Israel, but the Bill goes much further than that. It would apply to any foreign situation where there is a territorial consideration. It would apply  to Western Sahara, the Turkish Republic of Northern Cyprus and maritime disputes. In fact, it would apply simply to any question of foreign policy in relation to a territory because of the breadth of the definition of “territorial consideration” in Clause 1.
It is true that we do not normally implement international obligations in this open-ended way. We normally have primary and sometimes secondary legislation that is designed to ensure that the UK state, including its various organs, both local and central government, is acting consistently with international obligations. Paragraph 6 operates fundamentally differently. The effect is to create a sort of open invitation to any public authority to pick an argument with the Government of the day on a potentially wide range of foreign policy issues. If that happens, if a public authority invokes the international law exception, the Government will then have to decide either to do nothing, in which case they will be left with more of a problem than the Bill is designed to solve, or to pursue enforcement, in which case the question will be submitted to the courts with all the risks of litigation of issues that otherwise would not be submitted to judicial determination that come with that.
There is an evident tension between the stated purpose of the Bill, which is to make sure that the Government are in greater control of foreign policy, and what could happen as a result of paragraph 6 in the Schedule. At a minimum, this provision will need a lot of tightening, but I really wonder why it is there. The guidance on procurement, which has been in place since the 2016, simply states that unless the Government have put in place formal legal sanctions, embargoes or restrictions, there should be no scope for a regime of trade sanctions or embargoes to be developed surreptitiously through public procurement. I am not sure what has changed since then that has led to the introduction of paragraph 6.